295 F.

3d 293

UNITED STATES of America, Appellee,

v.
James GAINES, Defendant-Appellant.
Docket No. 00-1665.

United States Court of Appeals, Second Circuit.

Argued: November 14, 2001.
Decided: July 12, 2002.

COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL

OMITTED Michael J. Stachowski, Buffalo, NY, for Appellant.
Joel L. Violanti, Assistant United States Attorney, Buffalo, N.Y.
(Kathleen M. Mehltretter, United States Attorney, Buffalo, NY, of
counsel), for Appellee.
Before CARDAMONE, McLAUGHLIN, and SOTOMAYOR, Circuit
Judges.
CARDAMONE, Circuit Judge.
Defendant James Gaines (defendant or appellant) was convicted,
following a jury trial, of violating 18 U.S.C. 922(g)(1), a statute that
makes it unlawful for a person having previously been convicted of a
felony to possess a firearm. Judgment on this conviction was entered on
September 26, 2000 in the United States District Court for the Western
District of New York (Skretny, J.), and defendant was sentenced to 188
months imprisonment. From this judgment, defendant appeals. We affirm.

A crucial piece of evidence used by the prosecutor at trial was a statement

Gaines made to the arresting officers. Because defendant is illiterate, his lawyer
declares on appeal that this fact, under all the circumstances, should have
resulted in a finding that the voluntariness of the statement is inherently tainted.
The subsequent motion to suppress that statement should have been granted,
counsel continues, because the confession was obtained in violation of
defendant's Fifth Amendment right to remain silent. We agree that the inability

of an accused to read or write is a factor to be considered in deciding the

voluntariness of a confession. But that inability by itself does not mean a
suspect cannot make a knowing, intelligent and voluntary waiver of his right to
remain silent. Here we are persuaded, as was the district court, that Gaines
knew full well what he was doing. He heard the statement, knew what it meant,
and freely agreed to it.
BACKGROUND
2

The conviction in this case stems from a sting operation involving a police
informant. In January 1999 the informant revealed to the Federal Bureau of
Investigation's Career Criminal Task Force (Task Force) that defendant was
looking for handguns. At the behest of the government, the informant set up an
appointment with Gaines to make a sale. On the day of the appointment,
February 6, 1999, members of the Task Force outfitted a truck with surveillance
equipment and put a box containing three guns within reach of the front seats.
The informant then drove to Gaines' home where defendant climbed into the
truck. After inspecting the weapons, defendant decided to purchase all three,
but asked for time to obtain the purchase price. The informant agreed, but
refused to allow Gaines to take the guns until he had paid for them.

A short while later the informant returned, and Gaines climbed into the truck
again. Once inside, Gaines asked for the guns to be left in the box and paid the
$300 agreed upon. The informant accepted the money and told Gaines that it
was a "done deal," which was the signal to the surveillance team that the
transaction was complete. Unfortunately, the members of the FBI Task Force
monitoring the sting were unable to hear the signal because of faulty
equipment so no one moved in to make an arrest. Unsure of what to do, the
informant stalled Gaines by having him look under the dashboard for a nonexistent additional gun. Meanwhile, the government agents called the informant
on his cell phone which allowed him to confirm that the transaction was
complete. The agents then arrested Gaines.

Once defendant was arrested, a member of the Task Force, Agent Robert
Wilson, reportedly had a short conversation with him about cooperating with
the government. Gaines was later interviewed by a different member of the
Task Force, Detective Robert Williams. Although the facts surrounding this
interview are in dispute, it is clear that defendant made an inculpatory statement
about the day's events, which was memorialized by Williams. As a result
Gaines was convicted on a one-count indictment charging him as a felon with
unlawful possession of firearms.

DISCUSSION
5

Gaines raises several issues on appeal. These relate to his pre-trial motion to
suppress his statement, the sufficiency of the evidence and other trial matters,
and his sentencing. We discuss each of them.

I Suppression of Statement
6

Defendant argues that his post-arrest statement should have been suppressed
for three reasons. First, he contends he was not read his Miranda rights; second,
he is unable to read, which he asserts renders his confession inherently tainted
and thus involuntary; and third, he alleges that his statement was impermissibly
coerced by a deceitful promise of leniency in exchange for cooperation.

Miranda instructs generally that an uncounseled statement made by a defendant

during custodial interrogation should be suppressed from use by the
government in its case-in-chief unless the prosecution proves that the suspect
voluntarily waived his right to counsel and privilege against self-incrimination.
Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
More specifically, when the government seeks to admit such statements at trial,
it must prove by a preponderance of the evidence that the defendant
relinquished his rights voluntarily with a full awareness of the rights being
waived and the consequences of doing so. United States v. Male Juvenile (95CR-1074), 121 F.3d 34, 39 (2d Cir. 1997). When evaluating voluntariness, we
have no per se rule that bars oral or implicit waivers, North Carolina v. Butler,
441 U.S. 369, 373, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979), but rather, make a
case-by-case determination based upon the totality of the circumstances,
Tankleff v. Senkowski, 135 F.3d 235, 244-45 (2d Cir. 1998).

If, however, a defendant is not advised of his Miranda rights prior to making
his custodial statement, an irrebuttable presumption of compulsion arises and
the state cannot show that the suspect waived his rights voluntarily. Oregon v.
Elstad, 470 U.S. 298, 307, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). A trial
court's conclusions regarding the constitutionality of a defendant's waiver of his
right to remain silent is reviewed de novo on appeal; the underlying findings of
fact are reviewed for clear error. See United States v. Spencer, 995 F.2d 10, 11
(2d Cir.1993) (per curiam).

Gaines first contends the arresting officers did not inform him of his right to
counsel and privilege against self-incrimination before taking a statement from
him, which, if found to be true, would create an irrebuttable presumption of

compulsion. For circumstantial support of his version of the facts, appellant

asserts the FBI Task Force made a number of mistakes in the course of their
sting operation, such as failing to ensure that all of the surveillance equipment
was in proper working order. If some of the portions of the sting were
performed improperly, Gaines reasons, then it must follow Detective Williams
improperly interrogated him as well. Additionally, defendant points to a
number of memory lapses on Williams' part concerning some of the specifics of
the arrest, such as the detective's inability to recall whether he had asked Gaines
any questions at the scene of the crime. Defendant urges us to draw an
inference of dishonesty from these lapses in memory.
10

At the suppression hearing Detective Williams testified that he read to

defendant from a Treasury Department form that spelled out the Miranda
warnings in detail, and that Gaines verbally acknowledged his understanding of
the rights read to him. Since Gaines does not contest the adequacy of the
Treasury Department form, this dispute is limited to the factual questions of
whether Williams actually read the form to defendant and whether defendant
acknowledged having been read his rights.

11

While it would be preferable to have physical evidence supporting Williams'

testimony, such as Gaines' signature of acknowledgment (as was obtained on
Gaines' statement), defendant points to no evidence that would establish clear
error on the part of the district court in choosing to credit Williams' testimony
over Gaines'. While defendant describes the sting operation as a "comedy of
errors," the errors defendant points to like the Task Force's failure properly
to maintain the surveillance equipment are not probative on the issue of
credibility. Given the lack of contrary proof, we rely on the district court's
findings because of its better vantage point from which to assess credibility. See
United States v. Rosa, 11 F.3d 315, 329 (2d Cir.1993) ("Assessments of the
credibility of witnesses are the province of the district court, and we are not
entitled to overturn those assessments on appeal.").

12

Next, Gaines maintains that because he is unable to read or write, his

inculpatory statement is "inherently tainted" and thus involuntary under the
totality of the circumstances. Because defendant's counsel only raises this issue
in a section heading and all but ignores it in his discussion, we would normally
find the issue to have been waived. See Norton v. Sam's Club, 145 F.3d 114,
117 (2d Cir.1998) ("Issues not sufficiently argued in the briefs are considered
waived and normally will not be addressed on appeal."). Nonetheless, giving
defendant the benefit of the doubt on whether the issue was preserved, the
underlying argument, as earlier noted, is without merit. While a suspect's
personal characteristics are weighed in the totality of the circumstances that are

analyzed in determining the voluntariness of a confession, see United States v.

Anderson, 929 F.2d 96, 99 (2d Cir.1991), an inability to read or write does not,
by itself, establish that the suspect is incapable of making a voluntary and
intelligent decision. Cf. Male Juvenile (95-Cr-1074), 121 F.3d at 40 (holding
that juvenile with documented cognitive disabilities knowingly waived his
rights). In this case, defendant has not alleged that his illiteracy stems from a
cognitive impairment or that his impairment renders him unable to understand
his rights. See id. As such, we find no error in the district court's conclusion that
Gaines understood the rights that were read to him and that he voluntarily
waived them.
13

As a third point, defendant asserts his statement should be suppressed because

it was induced by a false offer of leniency in return for his cooperation.
Specifically, he contends Agent Wilson told him that he could benefit from
cooperating in other sting operations, but that the government never intended to
allow him to do so. In assessing the totality of the circumstances, vague
promises of leniency for cooperation are just one factor to be weighed in the
overall calculus and generally will not, without more, warrant a finding of
coercion. See United States v. Jaswal, 47 F.3d 539, 542 (2d Cir.1995) (per
curiam). In addition, though caution must be exercised, "[t]here is no
inconsistency between the required warning that the defendant's statement may
be used against him and a further statement that cooperation can help him. Both
are true." Id. It has been recognized nevertheless that unfulfillable promises or
certain other misrepresentations made to a suspect might render a confession
involuntary because they overcome his desire to remain silent. See United
States v. Ruggles, 70 F.3d 262, 265 (2d Cir.1995). But that is not this case.

14

Here, although Agent Wilson admits to conversing briefly with Gaines about
the possibility of cooperation, he stated that nothing specific was promised to
defendant for doing so. Instead, the agent simply said that the prosecutor and
the judge would be made aware of Gaines' behavior if it amounted to
cooperation. This vague description of the potential benefits of cooperation
contained no material misrepresentations or unfulfillable promises.
Accordingly, we find no error in the district court's determination that
defendant's statement was made voluntarily.

II Sufficiency of Evidence
15

Defendant next challenges the sufficiency of the evidence upon which his
conviction under 922(g)(1) was based. That statute makes it unlawful for a
person, who has previously been convicted of a crime punishable by a prison
term exceeding one year, "to ship ... or possess in or affecting commerce, any

firearm or ammunition; or to receive any firearm or ammunition which has been

shipped or transported in interstate or foreign commerce." Gaines contends his
conviction cannot stand because the prosecution did not prove he possessed the
firearms within the meaning of the statute. He avers more particularly that the
sting operation aborted the sale of the guns prior to the transfer of possession.
16

To successfully challenge the sufficiency of the evidence underlying his

conviction, defendant bears the heavy burden of showing when viewing the
evidence in the light most favorable to the government, and drawing all
inferences in favor of the prosecution, see Jackson v. Virginia, 443 U.S. 307,
319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) that no rational trier of fact could
have found him guilty. See United States v. Payton, 159 F.3d 49, 55-56 (2d
Cir.1998). There are two ways in which the government can prove possession
within the meaning of 922(g). The first, actual possession, requires the
government to show defendant physically possessed the firearm. The second,
constructive possession, "exists when a person has the power and intention to
exercise dominion and control over an object, [which] may be shown by direct
or circumstantial evidence." Id. at 56. Thus, under constructive possession, an
individual can possess a gun within the meaning of the statute without ever
physically handling the firearm. In addition, under this theory, possession need
not be exclusive. Id.

17

With regard to actual possession, counsel for defendant insists that the "most
telling" evidence in this case is the videotape of the sting operation, which he
declares provides "no proof beyond a reasonable doubt of actual possession of
the guns." Counsel then asserts that no guns are visible on the videotape. He
argues, "All that we can see at the beginning is a box being taken out of the
vehicle by an agent of the Task Force, and later returned to the vehicle. We
never see the contents of the box." Based on our review of the videotape, this
appears to be a distortion of the facts. Specifically, in the beginning of the tape,
the informant and defendant discuss the three weapons in the box. Then Gaines
reaches into the box, handles the guns one at a time, and briefly inspects each
of them. When he does so, not only can we see the contents of the box, but we
can see Gaines actually holding the weapons in his hand. This fact alone was
sufficient to allow a jury to find actual possession, however briefly it occurred.

18

The discrepancy between the actual contents of the tape and defense counsel's
representations make us wonder whether counsel watched the entire tape. If
not, we have serious concerns about the quality of representation afforded
defendant, especially given that counsel argued on appeal that the defense
turned on this "telling" evidence. Cf. Dinova v. Harris (In re Dinova), 212 B.R.
437, 447 (B.A.P.2d Cir. 1997) (stating that an attorney has a duty not to put

false evidence before the court or make misrepresentations to the court).

Further, sloppy drafting of legal documents is particularly troubling when an
attorney represents a client who is illiterate and has little or no ability to
monitor his counsel's written work. Cf. Chapman v. ChoiceCare, 288 F.3d 506,
514 (2d Cir. 2002) (noting that court should exercise an "extra measure of
caution" when adjudicating claims of litigants with limited ability "to
participate in the proceedings ... [or] monitor [their] counsel's performance").
While the evidence against defendant was overwhelming in this case, we
caution counsel to adhere zealously to the duties he owes his client and the
courts.
19

In any event, even absent Gaines' brief actual possession of the weapons, the
evidence was more than sufficient for a rational jury to find that he had
constructive possession. The jury could have found beyond a reasonable doubt
that after defendant paid for the weapons, he had the power and intention to
exercise dominion and control over the firearms, irrespective of whether he was
waiting for the informant to show him an additional gun. Appellant's insistence
that there is no evidence to demonstrate that the guns were actually in the box
or that he knew that they were in the box is once again belied by the videotape.
On the portion of the tape that recorded the second meeting with the informant,
defendant is shown looking into the box before agreeing to pay the money.
Thus, a reasonable juror could infer that defendant would have proceeded with
the transaction only if the guns were present. Under either theory of 922(g)
possession, the evidence amply supports the jury's verdict.

III Jury Charge

20

Defendant next asserts that the jury charge was incomplete and misleading with
regard to constructive possession. Reading appellant's brief liberally, we discern
several arguments relating to this issue: constructive possession was not
charged; the instruction did not point out that the transaction was incomplete;
and the portion of the instructions regarding knowledge was insufficient or
incorrect.

21

Because defendant did not raise these objections before the trial court, he is
only entitled to a limited, plain error review. See Fed.R.Crim.P. 52(b); United
States v. Desimone, 119 F.3d 217, 225 (2d Cir.1997). To prevail under this
standard, appellant must demonstrate that there was an error, it is plain, and it
affects substantial rights. See United States v. Thomas, 274 F.3d 655, 667 (2d
Cir.2001) (en banc). In addition, even if these three requirements are met, we
only exercise our discretion to notice the error if the plain error prejudices the
fairness, integrity, or public reputation of a judicial proceeding. Id. Because he

is unable to demonstrate that there was even an error, defendant cannot get past
the first step of the test.
22

First, defendant avers that constructive possession was not charged. Of course,
if this were true, then the jury would have had to have found actual possession,
which, as a more restrictive standard, would have benefitted him. In any case,
even were we to ignore this flaw in reasoning, the argument is without merit.
As already observed, constructive possession "exists when a person has the
power and intention to exercise dominion and control over an object." Payton,
159 F.3d at 56. In comparison, the district court charged the jury as follows

23

To ["]possess["] it means to have something within a person's control. This

does not necessarily mean that the defendant must hold it physically. That
means to actually possess it, having actual possession of it. As long as the
firearm is within the defendant's control, he possesses it. If you find that he
either had actual possession of the firearm or he had the power and intention to
exercise control over it, even though it was not in his physical possession, you
may find that the government has proven possession.

24

Hence, although the charge did not expressly include the phrase "constructive
possession," it contained a thorough description of all its elements. No more is
required. See United States v. Evangelista, 122 F.3d 112, 116 (2d Cir.1997) ("
[D]efendants are entitled only `to have instructions presented which adequately
apprise[] the jury of the elements of the crime charged and their defense.'"
(second alteration in original)).

25

Second, appellant maintains that the instruction did not clearly point out that the
transaction was incomplete. However, defendant does not give us any reason
why such an instruction would be appropriate and we have difficulty imagining
one. Given that this was an issue of fact, it would have been improper for the
district court to usurp the function of the jury by instructing them to resolve the
issue in favor of defendant, especially given that the evidence clearly supported
the contrary position that the sale of the three firearms was complete upon
payment.

26

Appellant's third argument is that an instruction regarding knowledge of the

contents of the box and knowledge of the dominion and control of the box was
needed in order for the jury to understand the charge. This argument is based on
appellant's belief that there is no direct evidence that the box in the truck
contained any weapons or that Gaines knew that it did. Based on this position
which, as noted earlier, is not supported by the videotape, defendant insists

some type of specialized instruction was warranted. We disagree. The district

court's instructions clearly required the jury to find that Gaines "knowingly
possessed" a firearm "purposely and voluntarily." Even if the jury somehow
could have concluded that, despite his handling of the weapons and looking
into the box, Gaines did not know about the firearms, then the district court's
knowledge instruction would have been sufficient to apprise the jury of this
basis for acquittal.
IV Commerce Clause Challenge
27

Defendant also disputes whether his possession of a firearm sufficiently

satisfied the interstate commerce element of 922(g). The nexus to interstate
commerce in this case was defendant's concession that the firearms had
"traveled at some time in interstate commerce." Yet, Gaines argues that the
Supreme Court's recent decisions in United States v. Morrison, 529 U.S. 598,
120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), and Jones v. United States, 529 U.S.
848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000), have narrowed the permissible
scope of 922(g) by requiring a "more tangible connection with interstate
commerce" than was the subject of his concession. But, in pressing this
argument, defendant fails to cite, much less distinguish, United States v.
Santiago, 238 F.3d 213, 216-17 (2d Cir.2001) (per curiam), which expressly
rejected this position. Santiago held that neither Morrison nor Jones requires us
to revisit our prior holding that only a minimal nexus with interstate commerce
is necessary under 922(g). As such, appellant's interstate commerce challenge
is without merit.

28

Given the errors in defendant's briefing already mentioned, we are troubled by

counsel's failure to mention this precedent. For this reason, we direct counsel's
attention to New York's Code of Professional Responsibility, which states that

29

[T]he complexity of law often makes it difficult for a tribunal to be fully

informed unless the pertinent law is presented by the lawyers in the cause....
Where a lawyer knows of controlling legal authority directly adverse to the
position of the client, the lawyer should inform the tribunal of its existence
unless the adversary has done so.

30

N.Y. Jud. Law App.: Code of Professional Responsibility EC 7-23 (McKinney

Supp. 2001-2002). The disciplinary rule associated with this ethical
consideration states: "In presenting a matter to a tribunal, a lawyer shall
disclose ... [c]ontrolling legal authority known to the lawyer to be directly
adverse to the position of the client and which is not disclosed by opposing
counsel." N.Y. Comp.Codes R. & Regs. tit. 22, 1200.37(b)(1) [DR 7-106]; cf.

Hernandez v. Jones, No. 92 CIV. 2451, 1993 WL 323820, at *5 n. 8 (S.D.N.Y.

Aug.6, 1993) (noting that failure to cite controlling authority "is at best
inexcusably poor lawyering and at worst suggests counsel's ignorance or
violation of DR 7-106(B)(1)").
V Downward Sentencing Departure
31

Passing now to the last issue, appellant declares that the district court erred in
declining to grant him a downward departure pursuant to United States
Sentencing Guideline (U.S.S.G.) 5K2.0, which allows a sentence "outside the
range established by the applicable guidelines, if the court finds that there
exists ... [a] mitigating circumstance of a kind, or to a degree, not adequately
taken into consideration by the Sentencing Commission." Although a court's
decision not to depart under this provision is largely unreviewable, United
States v. McCarthy, 271 F.3d 387, 401 (2d Cir.2001), a trial court's
determination that a factor is categorically excluded from consideration is a
question of law, which we review de novo. See Koon v. United States, 518 U.S.
81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996).

32

Gaines declares that the district court refused to consider his assistance in a
state murder prosecution as a possible basis for departure. Typically, for a
district court to depart downward for substantial assistance to authorities, a
motion by the government is required. See U.S.S.G. 5K1.1. But, in this case,
defendant assisted state prosecutors, not federal, which makes 5K2.0 an
appropriate potential basis for departure. See United States v. Kaye, 140 F.3d
86, 88-89 (2d Cir.1998). The sentencing court therefore had authority to
consider a downward departure even without a motion by the government. Id.
at 87.

33

Importantly, when sentencing defendant, the sentencing court recognized that

5K2.0 provided it with the authority to depart downward, but nonetheless it
declined to do so, reasoning that anyone who had ever cooperated in a past
prosecution would become eligible for a downward departure. It concluded that
such a departure might be appropriate when a defendant's assistance is
"contemporaneous" with a pending proceeding, but that Gaines had assisted the
state several years prior to the trial in the instant case.

34

Because defendant's assistance occurred so long ago, his conduct is akin to a

prior good deed, which is a discouraged basis for departure. See U.S.S.G.
5H1.11 (noting that "[m]ilitary, civic, charitable, or public service ... and
similar prior good works are not ordinarily relevant in determining whether a
sentence should be outside the applicable guideline range"). Only if a

defendant's conduct was so extraordinary that it falls outside of the heartland of

cases covered by the guidelines would a downward departure be warranted.
United States v. Rioux, 97 F.3d 648, 663 (2d Cir.1996). In this case, though
defendant's prior actions were commendable, the sentencing court did not abuse
its discretion in determining that they were not so extraordinary that they
justified a departure. Consequently, defendant's attack on his sentence must fail.
CONCLUSION
35

For the reasons stated, the judgment of the district court is affirmed.